# C_2007183EN.01001601.xml

| 4.8.2007 | EN | Official Journal of the European Union | C 183/16 |
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4.8.2007

EN

Official Journal of the European Union

C 183/16

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Action brought on 30 March 2007 — Commission of the European Communities v Republic of Poland

(Case C-170/07)

(2007/C 183/26)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: J. Hottiaux and K. Herrmann, acting as Agents)

Applicant:

Defendant: Republic of Poland

Defendant:

Form of order sought

| — | declare that, by introducing a requirement for roadworthiness tests of imported second-hand vehicles prior to their registration whereas there is no such requirement in relation to domestic vehicles in the same circumstances, the Republic of Poland has failed to fulfil its obligations under Article 28 EC; |
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declare that, by introducing a requirement for roadworthiness tests of imported second-hand vehicles prior to their registration whereas there is no such requirement in relation to domestic vehicles in the same circumstances, the Republic of Poland has failed to fulfil its obligations under Article 28 EC;

| — | order the Republic of Poland to pay the costs. |
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order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Article 28 EC prohibits quantitative restrictions on imports between Member States and all measures having equivalent effect. According to the Court's case-law, in the absence of harmonisation ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions’.

A measure having equivalent effect to a quantitative restriction constitutes an infringement of Article 28 EC unless it is justified on the basis of Article 30 EC or, in accordance with the Court's case-law, by mandatory requirements in the public interest.

The Polish Law on Road Traffic imposes an obligation to carry out a roadworthiness test prior to the first registration of vehicles in Poland. Since new vehicles are exempted from that obligation, in practice only second-hand vehicles imported from other Member States are subject to mandatory roadworthiness tests prior to their registration in Poland. Consequently, that requirement constitutes a measure discriminating against vehicles imported from other Member States compared with domestic vehicles. Moreover, the above conclusion is supported by the fact that the Polish authorities charge for the roadworthiness tests carried out a significant fee almost twice as high as the fee for periodical tests for a domestic vehicle of the same category. In the Commission's view, the Polish authorities have not put forward a legitimate justification for such differentiation. In accordance with settled case-law, national provisions which impose additional costs on imported goods in comparison with similar domestic goods constitute a restriction on intra-Community trade for the purposes of Article 28 EC.

In order to justify such a measure, the Member State must prove that it is necessary and proportionate to the objective pursued. In accordance with Article 30 EC, such a measure cannot constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

In this regard, the Commission acknowledges that the fact that a vehicle has been used on the public highway since the last roadworthiness test may justify, on grounds of the protection of health and life of humans, a test carried out at the time of the vehicle's registration establishing that it has not been involved in an accident and is in a good mechanical condition. The Member States may therefore subject vehicles to roadworthiness tests prior to registration, provided however that such a requirement does not constitute arbitrary discrimination, that is to say it concerns both vehicles imported from other Member States and domestic vehicles in a similar position. However, if provisions of national law do not require roadworthiness tests for domestic vehicles submitted for registration in the same circumstances as vehicles imported from other Member States, such provisions must be found to constitute arbitrary discrimination.

Furthermore, the Commission takes the view that the Polish provisions restricting intra-Community trade cannot be justified by the protection of health and life of humans, because they do not meet the requirement that they be necessary and proportionate.

First, if the roadworthiness of a vehicle has been tested in one of the Member States, the principle of equivalence and of mutual recognition resulting from Article 3(2) of Directive 96/96/EC obliges all Member States to recognise a certificate issued in such circumstances as if they had issued it themselves. The Commission has to reject the argument of the Polish authorities that periodical roadworthiness tests carried out in another Member State are immaterial. In the Commission's view, marking in the registration documents the fact that the vehicle's registration has been cancelled is not intended to invalidate all roadworthiness tests and other certificates concerning the vehicle's mechanical state and, moreover, the cancellation of a vehicle's registration has nothing to do with its mechanical state. Second, selective checking would be more proportionate to safeguarding road safety, because it would concern only those vehicles imported from other Member States in relation to which there is reason to suppose that they endanger road safety or the environment. Third, the Commission does not agree with the Polish Government that roadworthiness tests are necessary for the identification of vehicles and the fight against crime. In the Commission's view, the carrying out of thorough roadworthiness tests which cost almost twice as much as periodical roadworthiness tests is not necessary for determining the category, sub-category, intended use or type of a vehicle. That information is usually already contained in the vehicle documents submitted to the Polish registration bodies. Fourth, the Commission rejects the Polish authorities' argument concerning the Vienna Convention. In the Commission's view, a lack of appropriate rules at international level has no effect on the Republic of Poland's obligations in relation to the Community.

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